ABDUL MURAD KHAN vs Mst. NOSHABA and 9 others

1. ' WALI MUHAMMAD KHAN, J.---Leave to appeal is sought against the judgment of the Peshawar High Court dated 5-11-1991, whereby the writ petition filed by the petitioner questioning the decision of the hierarchy of special forums constituted under the PATA Regulation (respondents 8 and 9 herein), was dismissed.

2. ' The facts of the case, briefly stated are that the petitioner filed a suit in the Court of Extra-Assistant Commissioner with powers of Deputy Commissioner under PATA Regulation, respondent No,8 herein, for declaration and permanent injunction that he is owner in possession of the suit land including the houses and fruit trees and defendants/respondents 1 to 7 having no right or interest therein were not entitled to interfere in his ownership and possession. The respondents 2 to 6 in their written statement, besides denying title of the petitioner, raised the plea of limitation and res judicata as well. After framing of issues including that of the limitation, the matter was referred to a Jirga which after recording the evidence recommended that Abdul Aman and Khair Muhammad witnesses of the petitioner may be administered oath to state whether the petitioner is owner of the suit property or not and if they depose so, the suit be decreed in his petitioners' favour.

3. Respondent No,8, on receipt of the above recommendation, gave notice on the objection of the respondents about limitation, appraised the evidence recorded by the Tribunal and came to the conclusion that the suit was time barred. The appeal and revision filed against it before respondents 9 and 10 having failed, the petitioner invoked the Constitutional jurisdiction which too, was dismissed in limine vide the impugned order.

4. ' We have heard Mr. Jehanzeb Rahim, Advocate for the petitioner, and have perused the record of the case. The learned counsel for the petitioner strenuously argued that respondent No,8 was legally required to frame an issue of limitation, record evidence thereon himself and decide the question of limitation before referring the case to Jirga. There is no cavil with this proposition of law but the controversy now before us is whether the learned E.A.C./respondent-8, on the receipt of the award by the Jirga, was legally not competent to adjudicate on the question of limitation more so when it was pressed for by the learned counsel for the defendants/respondents. Admittedly, the decision on question of limitation must be made before other disputed questions because if it is concluded that the suit is time-barred, the Court is not compelled to give its decision on the other issues and in case of PA.TA., as alleged by the learned counsel for the petitioner himself, it is to be decided before the reference to the Jirga. The learned Deputy Commissioner while remitting the case to the Jirga framed issue of limitation as well and directed the recording of evidence thereon also. This course admittedly was not warranted by law but the parties did not object to it at that moment nor expressed their grievance against it before the higher forums rather complied with it and produced evidence before the Tribunal. However, the Tribunal probably conscious of their limitation refrained from giving any finding on the question of limitation with the result that when the finding came up for consideration before the learned Deputy Commissioner the objection was raised by the learned counsel for the respondents that their plea of limitation may be decided first.

5. Even at that moment the petitioner or his counsel did not press for the production of evidence afresh but acquiesced in the decision by the Deputy Commissioner on the evidence already recorded by the Jirga. Both the parties argued the point of limitation in the light of the evidence and the learned Deputy Commissioner after thorough appraisal of the evidence produced by both the parties before the Jirga, came to the conclusion that the petitioner was out of possession for more than 30 years and held the suit as time-barred and the higher forums concurred with him.

6. It is by now a well-established principle that the question of limitation is a mixed question of law and fact and recording of evidence thereon sometimes is essential for the proper adjudication thereof. Subsection (2) of section 4 of Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation No,II of 1975, provides that a case shall not be referred to a Tribunal if a civil suit in respect thereof would be barred under any Riwaj, custom or usage having the force of law. There is no positive provision in the Regulation itself that whenever a question of limitation is raised, the Deputy Commissioner is required to frame issue thereon, record evidence and decide the question before reference of the matter to the Tribunal, but, since under subsection (2) of section 4, he can only refer the matter to the Tribunal if the same is not time-barred, he in the normal course has to give his verdict after hearing the parties and allowing them an opportunity to lead evidence on their respective allegations. In the case in hand, the Deputy Commissioner entrusted the task of recording of evidence on the issue of limitation to the Tribunal which was not objected to or resented by the parties. The learned Deputy Commissioner acting under subsection

(2) of section 4 of PATA Regulation did his duty to adjudicate upon the question of limitation and we do not see any illegality committed by him particularly when the parties did not object to his decision on the evidence already recorded by the Jirga. The hierarchy of forums constituted under PATA Regulation have the exclusive jurisdiction to adjudicate upon the cases of the parties hailing from that area in accordance with the special procedure provided for in the Regulation, ibid, the High Court in its Constitutional jurisdiction could not upset their findings in the absence of any illegality or jurisdictional error. The learned High Court rightly declined to interfere in the judgments of the lower forums merely on the basis of hyper-technical objection.

7. ' The instant petition is, accordingly, dismissed and leave to appeal is refused.